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Court Mandates EPA Crack Down on New Emissions

By on 7.15.13 | 4:06PM

Should the federal government regulate emissions produced by dead trees?

A federal appeals court said yes, striking down the Environmental Protection Agency’s attempt to delay regulation of biogenic carbon dioxide emissions from non-fossil fuel sources on Friday. The court affirmed the need for such emissions to be regulated under the Clean Air Act, negating the exemption made by the EPA for “biogenic carbon dioxide.”

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the EPA had “no basis” for its three-year exemption on the regulation of biogenic CO2 that come from non-fossil fuel sources. The EPA requires preconstruction review and permitting for greenhouse gases emitted from power plants, but in 2011 it declared an exemption for biogenic CO2, claiming it was uncertain about the science involved with biogenic CO2 and its role in the atmosphere.

Biogenic CO2 emissions result from the decomposition of landfill waste, manure treatment, wastewater treatment, ethanol treatment, and the combustion of biological materials, for example, the burning of wood.

“Burning trees to generate electricity is dangerous, polluting and ought to be limited to protect people and the environment,” Kevin Bundy, a senior attorney with the Center for Biological Diversity’s Climate Law Institute, said. “This important decision will reduce respiratory ailments, protect forests, and help ensure a healthier, more livable climate.”

Judge David Tatel’s lead opinion in the case stated that the deferral rule “spends pages explaining the scientific uncertainty about biogenic carbon dioxide sources, the additional research EPA plans to undertake, and why three more years of study are warranted, the rule … nowhere offers an interpretation of the Clean Air Act that would allow the agency to treat biogenic carbon dioxide sources differently.”

Environmental groups argue that the EPA should not be allowed to exempt biogenic CO2 emissions since the gases are defined as air pollutants under the Clean Air Act. Industry groups claim that such regulations are too expensive and that in some cases, for example, wood burning, facilities are carbon-neutral because trees absorb CO2 before being cut down.

According to the fact sheet for the 2011 deferral, one of the EPA’s objectives was to develop “a final rule by the conclusion of the three year deferral period regarding how biogenic CO2 emissions should be treated and accounted for in PSD and Title V permitting based on the feedback from the scientific and technical review.”

The court should have allowed the EPA to finish its scientific review of the emissions. Regulation is completely unnecessary, especially with the science unclear on the subject and since the emissions are not entirely manmade. For example, a dead tree releases biogenic CO2 whether it was struck by lightning or part of a cutting operation. It is preposterous for the EPA to regulate emissions when they themselves are unclear on the science and when man has no control over them in many cases.

The court’s decision comes as the EPA is working to orchestrate rules ordered by President Obama to regulate carbon emissions from power plants as part of the president’s climate change agenda. It left an opening for the EPA to decide if emissions should be exempt, but not in the manner of the first deferral.

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